You can listen to a radio interview of Terri M. Kelleher on the new law in Hong Kong with Neil Johnson on Vision Christian Radio here and scroll down to “Hong Kong Freedoms Evaporating – Terri Kelleher (Aust Family Assoc) – 15 Jul 2020”. Vision Christian Radio can be heard all over Australia. For the frequency to tune in to in your area, click here.
by Terri M. Kelleher
Contrary to the great expectations of its Belt and Road Initiative, which the Chinese Communist Party (CCP) describes as “a bid to enhance regional connectivity and embrace a brighter future”, the new Law of the People’s Republic of China on Safeguarding National Security in the Hong Kong Special Administrative Region (HKSAR) (the NSL) has brought down a virtual bamboo curtain over Hong Kong and the rest of China.
It was passed as a response to a year of widespread protests of millions of citizens of Hong Kong at what they see as threats to the freedoms agreed to be retained by the people of Hong Kong when Great Britain handed Hong Kong back to China in 1997 at the expiration of a 99-year lease it had entered into in 1898.
In a Treaty signed in December 1984 and lodged with the United Nations, China agreed to one country/two systems under which “the … social and economic systems in Hong Kong will remain unchanged, and so will the life-style. Rights and freedoms, including those of the person, of speech, of the press, of assembly, of association, of travel, of movement, of correspondence, of strike, of choice of occupation, of academic research and of religious belief will be ensured by law in the Hong Kong Special Administrative Region.”
And: “The Hong Kong Special Administrative Region will be vested with executive, legislative and independent judicial power, including that of final adjudication. The laws currently in force in Hong Kong will remain basically unchanged.”
Attempts by China to enact a law that would allow people of Hong Kong to be extradited to mainland Communist China for trial was the catalyst that led to the protests.
Under the NSL, a specialised prosecution division is to be set up by the Hong Kong Department of Justice to deal with prosecutions under the new law (Article 18). The head of this division is nominated by the Hong Kong Chief Officer but only with the agreement of the Central People’s Government of China (CPGC) (Article 48).
If they decide to exercise jurisdiction in a given case, suspects can be removed to face trial in mainland China and mainland criminal procedures will be applied (Articles 55-57). The Hong Kong Bar Association says this “rais(es) concern as to whether the rights of the accused to a fair trial will be adequately protected or respected”.
The power of interpretation of the NSL is vested in the Standing Committee of the National People’s Congress of China (Article 65). The Hong Kong Bar Association has expressed concern that this has the potential to undercut the independent exercise of judicial power by the Courts of Hong Kong, undermining the independence of the judiciary guaranteed by Articles 80 and 85 of the Hong Kong Basic Law enacted under the Treaty.
It is also of concern as there are no clear definitions of terms such as “safeguarding national security” on which the operation of the law depends; and the offences to which the NSL applies are not clearly defined.
The Hong Kong Bar Association commented: “These are widely drawn and, absent a clear and comprehensive array of publicly accessible guidelines and basic safeguards as to legal certainty and fair treatment, are capable of being applied in a manner that is arbitrary, and that disproportionately interferes with fundamental rights, including the freedom of conscience, expression and assembly.”
“Secession” (Article 20) includes “separating” Hong Kong from the People’s Republic of China (PRC). Would this include expressing a view that the NSL overrides or is inconsistent with the one country/ two systems agreed to under the 1984 Treaty and guaranteed by the Hong Kong Basic Law?
“Subversion” (Article 22) includes:
- “Undermining the basic system of the People’s Republic of China established by the Constitution of the People’s Republic of China.” Would holding up a placard saying “Freedom for Hong Kong” amount to subversion? Already authorities have said the slogan, “Liberate Hong Kong, revolution of our times”, connotes separatism or subversion under the new law.
- “Overthrowing the body of central power … of the Hong Kong Special Administrative Region.” Would this include lobbying for all members of the Hong Kong legislature to be elected by a vote of all Hong Kong citizens?
- “Seriously interfering in, disrupting, or undermining the performance of duties and functions … by the body of central power of the … Hong Kong Special Administrative Region.” Would lobbying against a law proposed by the Hong Kong legislature be in breach of this provision?
“Terrorist activities” (Article 24) include a vague catch-all: “Dangerous activities which seriously jeopardise public health, safety or security.” Would organising or supporting protests such as those already seen in Hong Kong amount to a terrorist act for which a suspect can be removed to Mainland China for investigation and trial?
“Collusion with a foreign country or external elements to endanger national security” (Article 29) includes: “Seriously disrupting the formulation and implementation of laws or policies by the Government of the Hong Kong … or by the Central People’s Government.” Would this include reporting on protests at laws that citizens of Hong Kong oppose as infringing on their guaranteed freedoms?
The NSL also appears to cover any person anywhere in the world. It applies to acts performed outside Hong Kong by a person who is not a permanent resident of Hong Kong (Article 38). And the law would apply to a person, for example a journalist, employed by a company incorporated in Hong Kong even if the offence is committed outside of Hong Kong (Article 37).
A foreign journalist commenting on events in Hong Kong from outside Hong Kong could risk arrest and investigation if they entered Hong Kong. Even support from people outside Hong Kong for the Hong Kong protestors who have been arrested could amount to an offence under the new law.
And penalties are severe: life imprisonment or imprisonment for not less than 10 years for the most serious offences.
The law was endorsed and adopted in mainland China on June 30, 2020, and came into force at 11pm the same day.
The Hong Kong Bar Association wrote that nobody in Hong Kong “had seen so much as a draft or accurate summary of the NSL before its entry into force.” And: “In addition to the total absence of meaningful consultation, lawyers, judges, police and Hong Kong residents were given no opportunity to familiarise themselves with the contents of the new law, including the serious criminal offences it creates, before it came into force.”
Anyone who does anything or expresses any view that could be held to be an offence under the NSL risks arrest and investigation if they enter Hong Kong. Already pro-democracy books have been removed from libraries in Hong Kong to be reviewed to see whether they violate the new law.